German courts confirm classification of CBD as novel food
With the rising popularity of Cannabinoids (particularly Cannabidiol, "CBD") and cannabis extracts in foodstuffs, a debate in Germany and other European Member States has arisen as to such foodstuffs qualify as so-called "novel food" under the Novel Food Regulation (EU) 2015/2283.
"Novel food" means any food (including food supplements) that was not used for human consumption to a significant degree within the European Union before 15 May 1997. It can only be placed on the EU market after prior authorisation by the European Commission.
Now, the first court decisions on the question whether CBD qualifies as novel food have been issued in Germany and demonstrate a clear tendency. In two proceedings for interim relief, the courts upheld, for the time being, administrative orders prohibiting the placing on the market of foodstuffs containing CBD, on the grounds that the foodstuffs in question are considered to be novel foods which cannot be placed on the market without prior authorisation by the European Commission (Administrative Court of Düsseldorf, Order of 27 September 2019, file reference 16 L 2333/19 and Higher Administrative Court of Mannheim, Order of 16 October 2019, file reference 9 S 535/19). The products in question consisted of CBD extract and natural hemp oil, CBD hemp flower extract and CBD crystals.
According to the courts, the authorities and lower courts can refer to the Novel Food Catalogue to justify the classification as novel food, as long as they are aware of the fact that it is non-binding and non-exclusive and also show this in their reasoning.
The applicants of the proceedings failed to prove that the products were not to be classified as novel food by arguing that this would, inter alia, result from a non-legally binding positive list of the EU Member States Italy and Belgium and a notification of the British Food Standards Agency from December 2017. The courts mainly criticised the evidential value respectively lacking topicality of the submitted documents.
In addition, the courts particularly emphasised that the assessment of whether a product qualifies as novel food does not depend on whether the raw materials or ingredients meet the requirements of the Novel Food Regulation (EU) 2015/2283 or are harmless. Hence, it is irrelevant whether the ingredients, e.g. the Cannabis plant itself, are not considered novel food. The decisive factor is, rather, the product produced from it. Also, the courts stress the fact that the classification must be taken on a case-by-case basis, taking into account all the characteristics of the foodstuff and the method of production. Furthermore, according to the courts, only the food itself or the ingredient matters and not a similar or comparable food or ingredients as minor differences can already have serious consequences in the field of novel food.